The Democratic Leadership’s current argument against impeachment is that the process should only be started if public support is high enough that even Senate Republicans would support it. Since the Senate is the jury in an impeachment trial, this is in effect saying that the House, which plays the role of prosecutor in impeachment, should wait for the jury to render a guilty verdict before charging the president with a crime.
In fact, Nancy Pelosi and like-minded supporters don’t even want the House to present the prosecution’s case for impeachment — which would be part of the purpose of an impeachment inquiry — until the public already supports removal. Imagine if prosecutors across the nation based their decision on whether to prosecute based on polls of potential jurors and didn’t present any kind of case for prosecution to those potential jurors first. Would not most jurors, having not heard a presentation of evidence, presume innocence and therefore be against charging? In such a system, would anyone ever be charged?
If impeachment isn’t popular, that’s largely because Trump and the GOP media are arguing every day that he’s been exonerated, that the investigation is illegitimate, that there’s a deep state conspiracy to fake charges against him to undo the 2016 election, that Democrats are untrustworthy sore losers and that we should all move on to the business of the country. At the same time, Democratic leaders like Pelosi are arguing that impeachment is divisive, pointless and politically dangerous for Democrats, which doesn’t exactly counter the Trump/GOP narrative. Only reporting from the mainstream and liberal media, along with advocacy from prosecutors and one rich guy, have kept the argument for impeachment alive. But the actual official prosecution case needs to be made by somebody official and the proper forum for that is an impeachment inquiry.
Pelosi has said she thinks Trump is guilty of crimes — to the point that she believes he would be prosecuted and go to jail if he were to lose the election. That means the decision against charging is entirely political, which is not appropriate. Nevertheless, if Pelosi and like-minded politicians don’t want red state Democrats to be forced to play the role of prosecutor because of the politics of it for those politicians, there is a solution. The House’s role in impeachment is both as prosecutor and as the grand jury that gathers evidence and hears the prosecutor’s case. Let those Democrats who are convinced he’s committed crimes and represent safe districts play the role of prosecutor and let all the rest play the role of the grand jury that votes to indict if they’re convinced by the prosecution’s case. Don’t force the whole party or the whole House for that matter to take a stance against impeachment because of the political position of some red state members in the Democratic Party.
Failing to impeach on the basis of politics fundamentally undermines the rule of law. It sets the precedent that unpopular presidents can potentially be charged on the flimsiest of evidence since the politics of charging an unpopular president will be more favorable. Meanwhile unpopular presidents can violate the law with impunity since the politics of charging the popular president are riskier. That’s not a system in which the laws are applying equally to all presidents. It is also not a precedent Republicans will consider. They will continue to try to manufacture scandals with which to impeach Democratic presidents both popular and unpopular. So the effect of this approach will be one set of rules for Democratic presidents and another for Republican presidents. It allows for the distortion of the rule of law into a popularity contest subject to all kinds of manipulation through social media and propaganda — just like our elections. Yes, there are risks. In most prosecutions, the prosecution knows going in that they risk losing because they may not succeed in convincing the jury. The expectation that the risk of losing should be eliminated in an impeachment proceeding is ridiculous and itself not in accordance with the rule of law and fair treatment of the accused. What’s more, Pelosi is risking the party’s credibility on any and all issues by signaling that politics matters more than principle.